Kerala Education Rules | Right To Preferential Appointment Expires Once Claimant Is Appointed In Any Future Vacancies: HC Full Bench Differs From Precedent

The Kerala High Court has ruled that the right to preferential appointment obtained by a claimant under Rule 51A of Chapter XIV-A of the Kerala Education Rules (KER) does not continue to be available to them once this right has been effectuated through an appointment in future vacancies that arise in any category of teaching posts under the same educational agency.

A Full Bench of Justice A.K Jayasanaran Nambiar, Justice Raja Vijayaraghavan V and Justice Mohammed Nias C.P thereby differed with the position in Sandhya T.N v. Jalaja Kumari & Ors [2008 (3) KLT 655] while adjudicating upon a reference made by the Division Bench doubting the correctness of the proposition of law laid down in the impugned decision.

"The right to preferential appointment obtained by a Rule 51A claimant does not continue to enure in that person once the said right has been effectuated through an appointment in future vacancies that arise in the same, lower or higher category of teaching posts in schools under the same educational agency. The decision to the contrary in Sandhya T.N (supra) has to be seen as rendered based on the peculiar factual circumstances that obtained in Elizabeth Oommen (supra) that it followed and cannot be seen as a general proposition of law governing the issue during the period between 17.06.2005 and 05.07.2012."

The Division Bench was deciding an inter se claim between holders of rights under Rule 43 and Rule 51A of Chapter XIV-A in the matter of preferential appointment to vacancies arising in teaching posts in the school concerned. The main issue was regarding the continued entitlement of a Rule 51A claimant to the right under the said provision, despite being accommodated to a vacancy in a teaching post in a different category, in effectuation of that right.

In the impugned decision, the appellant had worked as HSA (Hindi) and Lower Grade Hindi teacher during various spells in schools under the management of the Travancore Devaswom Board between 1994 and 2005. While she was working as Lower Grade Hindi Teacher in the school with effect from 2003, she was retrenched from the post with effect from 15.07.2005. She thus obtained a right under Rule 51A for preferential appointment to future vacancies in the same, lower or higher categories of teaching posts in the school for which she was qualified.

In this case, the first respondent had similarly worked as HSA (Hindi) and Lower Grade Hindi teacher under the Board between 1992 and 2011. She was working as an HSA when she was reverted as Lower Grade Hindi teacher with effect from 15.07.2003 in accordance with the 2nd proviso to Rule 43 of Chapter XIV-A. Hence she was never retrenched from the school to claim any right under Rule 51A and she continued in the said post till 31.05.2011.

When a vacancy arose in the post of HSA (Hindi) on 01.06.2011, the manager promoted the first respondent recognizing her claim under Rule 43, ignoring the appellant's Rule 51A claim which was superior as per the statutory provisions then in vogue.

In a revision petition filed by the appellant, the Government ruled in her favour and directed her appointment to the post. The first respondent challenged this order before a Single Judge contending that she was both a Rule 43 claimant as well as a Rule 51A claimant. This petition was disposed of directing the Government to look into the rival claims, but the Government held that the first respondent was only a Rule 43 claimant and her claim had to yield to the superior right of the appellant under Rule 51A.

The Single Judge however found that the first respondent was entitled to the vacancy of HSA (Hindi) as she continued to be a Rule 51A claimant notwithstanding her appointment as Lower Grade Hindi Teacher and considering her seniority over the appellant. The Single Judge relied on the impugned decision in Sandhya T.N (supra) while holding so

The appellant thereby moved a Division Bench challenging the same, and it was at this juncture that the Bench doubted the correctness of the view in Sandhya T.N (supra) that a Rule 51A claimant continued to hold the right under that provision notwithstanding the accommodation to a vacancy in a teaching post in a different category in effectuation of that right.

The Full Bench noted that Rules 43 and 51A clearly stipulate that during the said period, the right under Rule 43 was subject to the right obtained under Rule 51A and that, in the event of an inter se claim between the different right holders, the holder of the right under Rule 43 had to yield to the superior right held by the other under Rule 51A.

However, the question here was whether the first respondent continued to hold a right under Rule 51A where consequent to her being found surplus in the post of HSA (Hindi) on 15.07.2003, she was not retrenched from the school, but reverted and retained therein as Lower Grade Hindi Teacher with effect from 15.07.2003 and in which post she continued till 31.05.2011.

The Full Bench also noted that the peculiar factual circumstances that existed in Elizabeth Oommen v. Beena Mariam George that was relied upon in deciding Sandhya T.N (supra) do not exist in the instant case. In this case, the first respondent was never relieved from the school but accommodated in a teaching post in a lower category consequent to her right under the 2nd proviso to Rule 43. Thus she never really obtained a right under Rule 51A at the time of her reversion and the only right that she had while staking a claim to the post of HSA (Hindi) was her right under Rule 43, subject to any existing right under Rule 51A.

"When we read the provisions of Rule 51A, we find it to be unambiguously indicated that the right to preferential appointment envisaged therein accrues only to a teacher who has been "relieved" in any of the circumstances mentioned in the Rule."

Even if it is assumed that she did obtain a right under Rule 51A when she was rendered surplus in 2003, her subsequent accommodation in the lower category teaching post had to be seen as effectuation of that right since, after the amendment to Rule 51A with effect from 17.06.2005, effectuation of the Rule 51A right could also be through an appointment in a lower category teaching post.

The Court, therefore, found that between the first respondent and the appellant, the latter had to be given the appointment to the post of HSA (Hindi) in the vacancy that arose. The appeal was accordingly remanded back to the Division Bench for disposal on merits in the light of this observation. 

Case Title: K. Sumangala Devi v. Binu P.N & Ors.

Citation: 2022 LiveLaw (Ker) 281

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